US (United States) Code. Title 17. Chapter 2: Copyright ownership and transfer

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Copyrights

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17 USC CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER

.

-HEAD-

CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER

-MISC1-

Sec.

201. Ownership of copyright.

202. Ownership of copyright as distinct from ownership of material

object.

203. Termination of transfers and licenses granted by the author.

204. Execution of transfers of copyright ownership.

205. Recordation of transfers and other documents.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 912 of this title.

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17 USC Sec. 201 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER

-HEAD-

Sec. 201. Ownership of copyright

-STATUTE-

(a) Initial Ownership. - Copyright in a work protected under this

title vests initially in the author or authors of the work. The

authors of a joint work are coowners of copyright in the work.

(b) Works Made for Hire. - In the case of a work made for hire,

the employer or other person for whom the work was prepared is

considered the author for purposes of this title, and, unless the

parties have expressly agreed otherwise in a written instrument

signed by them, owns all of the rights comprised in the copyright.

(c) Contributions to Collective Works. - Copyright in each

separate contribution to a collective work is distinct from

copyright in the collective work as a whole, and vests initially in

the author of the contribution. In the absence of an express

transfer of the copyright or of any rights under it, the owner of

copyright in the collective work is presumed to have acquired only

the privilege of reproducing and distributing the contribution as

part of that particular collective work, any revision of that

collective work, and any later collective work in the same series.

(d) Transfer of Ownership. -

(1) The ownership of a copyright may be transferred in whole or

in part by any means of conveyance or by operation of law, and

may be bequeathed by will or pass as personal property by the

applicable laws of intestate succession.

(2) Any of the exclusive rights comprised in a copyright,

including any subdivision of any of the rights specified by

section 106, may be transferred as provided by clause (1) and

owned separately. The owner of any particular exclusive right is

entitled, to the extent of that right, to all of the protection

and remedies accorded to the copyright owner by this title.

(e) Involuntary Transfer. - When an individual author's ownership

of a copyright, or of any of the exclusive rights under a

copyright, has not previously been transferred voluntarily by that

individual author, no action by any governmental body or other

official or organization purporting to seize, expropriate,

transfer, or exercise rights of ownership with respect to the

copyright, or any of the exclusive rights under a copyright, shall

be given effect under this title, except as provided under title

11.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2568;

Pub. L. 95-598, title III, Sec. 313, Nov. 6, 1978, 92 Stat. 2676.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Initial Ownership. Two basic and well-established principles of

copyright law are restated in section 201(a): that the source of

copyright ownership is the author of the work, and that, in the

case of a ''joint work,'' the coauthors of the work are likewise

coowners of the copyright. Under the definition of section 101, a

work is ''joint'' if the authors collaborated with each other, or

if each of the authors prepared his or her contribution with the

knowledge and intention that it would be merged with the

contributions of other authors as ''inseparable or interdependent

parts of a unitary whole.'' The touchstone here is the intention,

at the time the writing is done, that the parts be absorbed or

combined into an integrated unit, although the parts themselves may

be either ''inseparable'' (as the case of a novel or painting) or

''interdependent'' (as in the case of a motion picture, opera, or

the words and music of a song). The definition of ''joint work''

is to be contrasted with the definition of ''collective work,''

also in section 101, in which the elements of merger and unity are

lacking; there the key elements are assemblage or gathering of

''separate and independent works * * * into a collective whole.''

The definition of ''joint works'' has prompted some concern lest

it be construed as converting the authors of previously written

works, such as plays, novels, and music, into coauthors of a motion

picture in which their work is incorporated. It is true that a

motion picture would normally be a joint rather than a collective

work with respect to those authors who actually work on the film,

although their usual status as employees for hire would keep the

question of coownership from coming up. On the other hand,

although a novelist, playwright, or songwriter may write a work

with the hope or expectation that it will be used in a motion

picture, this is clearly a case of separate or independent

authorship rather than one where the basic intention behind the

writing of the work was for motion picture use. In this case, the

motion picture is a derivative work within the definition of that

term, and section 103 makes plain that copyright in a derivative

work is independent of, and does not enlarge the scope of rights

in, any preexisting material incorporated in it. There is thus no

need to spell this conclusion out in the definition of ''joint

work.''

There is also no need for a specific statutory provision

concerning the rights and duties of the coowners of a work;

court-made law on this point is left undisturbed. Under the bill,

as under the present law, coowners of a copyright would be treated

generally as tenants in common, with each coowner having an

independent right to use or license the use of a work, subject to a

duty of accounting to the other coowners for any profits.

Works Made for Hire. Section 201(b) of the bill adopts one of the

basic principles of the present law: that in the case of works made

for hire the employer is considered the author of the work, and is

regarded as the initial owner of copyright unless there has been an

agreement otherwise. The subsection also requires that any

agreement under which the employee is to own rights be in writing

and signed by the parties.

The work-made-for-hire provisions of this bill represent a

carefully balanced compromise, and as such they do not incorporate

the amendments proposed by screenwriters and composers for motion

pictures. Their proposal was for the recognition of something

similar to the ''shop right'' doctrine of patent law: with some

exceptions, the employer would acquire the right to use the

employee's work to the extent needed for purposes of his regular

business, but the employee would retain all other rights as long as

he or she refrained from the authorizing of competing uses.

However, while this change might theoretically improve the

bargaining position of screenwriters and others as a group, the

practical benefits that individual authors would receive are highly

conjectural. The presumption that initial ownership rights vest in

the employer for hire is well established in American copyright

law, and to exchange that for the uncertainties of the shop right

doctrine would not only be of dubious value to employers and

employees alike, but might also reopen a number of other issues.

The status of works prepared on special order or commission was a

major issue in the development of the definition of ''works made

for hire'' in section 101, which has undergone extensive revision

during the legislative process. The basic problem is how to draw a

statutory line between those works written on special order or

commission that should be considered as ''works made for hire,''

and those that should not. The definition now provided by the bill

represents a compromise which, in effect, spells out those specific

categories of commissioned works that can be considered ''works

made for hire'' under certain circumstances.

Of these, one of the most important categories is that of

''instructional texts.'' This term is given its own definition in

the bill: ''a literary, pictorial, or graphic work prepared for

publication with the purpose of use in systematic instructional

activities.'' The concept is intended to include what might be

loosely called ''textbook material,'' whether or not in book form

or prepared in the form of text matter. The basic characteristic

of ''instructional texts'' is the purpose of their preparation for

''use in systematic instructional activities,'' and they are to be

distinguished from works prepared for use by a general readership.

Contributions to Collective Works. Subsection (c) of section 201

deals with the troublesome problem of ownership of copyright in

contributions to collective works, and the relationship between

copyright ownership in a contribution and in the collective work in

which it appears. The first sentence establishes the basic

principle that copyright in the individual contribution and

copyright in the collective work as a whole are separate and

distinct, and that the author of the contribution is, as in every

other case, the first owner of copyright in it. Under the

definitions in section 101, a ''collective work'' is a species of

''compilation'' and, by its nature, must involve the selection,

assembly, and arrangement of ''a number of contributions.''

Examples of ''collective works'' would ordinarily include

periodical issues, anthologies, symposia, and collections of the

discrete writings of the same authors, but not cases, such as a

composition consisting of words and music, a work published with

illustrations or front matter, or three one-act plays, where

relatively few separate elements have been brought together.

Unlike the contents of other types of ''compilations,'' each of the

contributions incorporated in a ''collective work'' must itself

constitute a ''separate and independent'' work, therefore ruling

out compilations of information or other uncopyrightable material

and works published with editorial revisions or annotations.

Moreover, as noted above, there is a basic distinction between a

''joint work,'' where the separate elements merge into a unified

whole, and a ''collective work,'' where they remain unintegrated

and disparate.

The bill does nothing to change the rights of the owner of

copyright in a collective work under the present law. These

exclusive rights extend to the elements of compilation and editing

that went into the collective work as a whole, as well as the

contributions that were written for hire by employees of the owner

of the collective work, and those copyrighted contributions that

have been transferred in writing to the owner by their authors.

However, one of the most significant aims of the bill is to clarify

and improve the present confused and frequently unfair legal

situation with respect to rights in contributions.

The second sentence of section 201(c), in conjunction with the

provisions of section 404 dealing with copyright notice, will

preserve the author's copyright in a contribution even if the

contribution does not bear a separate notice in the author's name,

and without requiring any unqualified transfer of rights to the

owner of the collective work. This is coupled with a presumption

that, unless there has been an express transfer of more, the owner

of the collective work acquires, ''only the privilege of

reproducing and distributing the contribution as part of that

particular collective work, any revision of that collective work,

and any later collective work in the same series.''

The basic presumption of section 201(c) is fully consistent with

present law and practice, and represents a fair balancing of

equities. At the same time, the last clause of the subsection,

under which the privilege of republishing the contribution under

certain limited circumstances would be presumed, is an essential

counterpart of the basic presumption. Under the language of this

clause a publishing company could reprint a contribution from one

issue in a later issue of its magazine, and could reprint an

article from a 1980 edition of an encyclopedia in a 1990 revision

of it; the publisher could not revise the contribution itself or

include it in a new anthology or an entirely different magazine or

other collective work.

Transfer of Ownership. The principle of unlimited alienability of

copyright is stated in clause (1) of section 201(d). Under that

provision the ownership of a copyright, or of any part of it, may

be transferred by any means of conveyance or by operation of law,

and is to be treated as personal property upon the death of the

owner. The term ''transfer of copyright ownership'' is defined in

section 101 to cover any ''conveyance, alienation, or

hypothecation,'' including assignments, mortgages, and exclusive

licenses, but not including nonexclusive licenses. Representatives

of motion picture producers have argued that foreclosures of

copyright mortgages should not be left to varying State laws, and

that the statute should establish a Federal foreclosure system.

However, the benefits of such a system would be of very limited

application, and would not justify the complicated statutory and

procedural requirements that would have to be established.

Clause (2) of subsection (d) contains the first explicit

statutory recognition of the principle of divisibility of copyright

in our law. This provision, which has long been sought by authors

and their representatives, and which has attracted wide support

from other groups, means that any of the exclusive rights that go

to make up a copyright, including those enumerated in section 106

and any subdivision of them, can be transferred and owned

separately. The definition of ''transfer of copyright ownership''

in section 101 makes clear that the principle of divisibility

applies whether or not the transfer is ''limited in time or place

of effect,'' and another definition in the same section provides

that the term ''copyright owner,'' with respect to any one

exclusive right, refers to the owner of that particular right. The

last sentence of section 201(d)(2) adds that the owner, with

respect to the particular exclusive right he or she owns, is

entitled ''to all of the protection and remedies accorded to the

copyright owner by this title.'' It is thus clear, for example,

that a local broadcasting station holding an exclusive license to

transmit a particular work within a particular geographic area and

for a particular period of time, could sue, in its own name as

copyright owner, someone who infringed that particular exclusive

right.

Subsection (e) provides that when an individual author's

ownership of a copyright, or of any of the exclusive rights under a

copyright, have not previously been voluntarily transferred, no

action by any governmental body or other official or organization

purporting to seize, expropriate, transfer, or exercise rights of

ownership with respect to the copyright, or any of the exclusive

rights under a copyright, shall be given effect under this title.

The purpose of this subsection is to reaffirm the basic principle

that the United States copyright of an individual author shall be

secured to that author, and cannot be taken away by any involuntary

transfer. It is the intent of the subsection that the author be

entitled, despite any purported expropriation or involuntary

transfer, to continue exercising all rights under the United States

statute, and that the governmental body or organization may not

enforce or exercise any rights under this title in that situation.

It may sometimes be difficult to ascertain whether a transfer of

copyright is voluntary or is coerced by covert pressure. But

subsection (e) would protect foreign authors against laws and

decrees purporting to divest them of their rights under the United

States copyright statute, and would protect authors within the

foreign country who choose to resist such covert pressures.

Traditional legal actions that may involve transfer of ownership,

such as bankruptcy proceedings and mortgage foreclosures, are not

within the scope of this subsection; the authors in such cases have

voluntarily consented to these legal processes by their overt

actions - for example, by filing in bankruptcy or by hypothecating

a copyright.

AMENDMENTS

1978 - Subsec. (e). Pub. L. 95-598 inserted '', except as

provided under title 11''.

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment effective Oct. 1, 1979, see section 402(a) of Pub. L.

95-598 set out as an Effective Date note preceding section 101 of

Title 11, Bankruptcy.

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17 USC Sec. 202 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER

-HEAD-

Sec. 202. Ownership of copyright as distinct from ownership of

material object

-STATUTE-

Ownership of a copyright, or of any of the exclusive rights under

a copyright, is distinct from ownership of any material object in

which the work is embodied. Transfer of ownership of any material

object, including the copy or phonorecord in which the work is

first fixed, does not of itself convey any rights in the

copyrighted work embodied in the object; nor, in the absence of an

agreement, does transfer of ownership of a copyright or of any

exclusive rights under a copyright convey property rights in any

material object.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2568.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The principle restated in section 202 is a fundamental and

important one: that copyright ownership and ownership of a material

object in which the copyrighted work is embodied are entirely

separate things. Thus, transfer of a material object does not of

itself carry any rights under the copyright, and this includes

transfer of the copy or phonorecord - the original manuscript, the

photographic negative, the unique painting or statue, the master

tape recording, etc. - in which the work was first fixed.

Conversely, transfer of a copyright does not necessarily require

the conveyance of any material object.

As a result of the interaction of this section and the provisions

of section 204(a) and 301, the bill would change a common law

doctrine exemplified by the decision in Pushman v. New York

Graphic Society, Inc., 287 N.Y. 302, 39 N.E.2d 249 (1942). Under

that doctrine, authors or artists are generally presumed to

transfer common law literary property rights when they sell their

manuscript or work of art, unless those rights are specifically

reserved. This presumption would be reversed under the bill, since

a specific written conveyance of rights would be required in order

for a sale of any material object to carry with it a transfer of

copyright.

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17 USC Sec. 203 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER

-HEAD-

Sec. 203. Termination of transfers and licenses granted by the

author

-STATUTE-

(a) Conditions for Termination. - In the case of any work other

than a work made for hire, the exclusive or nonexclusive grant of a

transfer or license of copyright or of any right under a copyright,

executed by the author on or after January 1, 1978, otherwise than

by will, is subject to termination under the following conditions:

(1) In the case of a grant executed by one author, termination

of the grant may be effected by that author or, if the author is

dead, by the person or persons who, under clause (2) of this

subsection, own and are entitled to exercise a total of more than

one-half of that author's termination interest. In the case of a

grant executed by two or more authors of a joint work,

termination of the grant may be effected by a majority of the

authors who executed it; if any of such authors is dead, the

termination interest of any such author may be exercised as a

unit by the person or persons who, under clause (2) of this

subsection, own and are entitled to exercise a total of more than

one-half of that author's interest.

(2) Where an author is dead, his or her termination interest is

owned, and may be exercised, as follows:

(A) The widow or widower owns the author's entire termination

interest unless there are any surviving children or

grandchildren of the author, in which case the widow or widower

owns one-half of the author's interest.

(B) The author's surviving children, and the surviving

children of any dead child of the author, own the author's

entire termination interest unless there is a widow or widower,

in which case the ownership of one-half of the author's

interest is divided among them.

(C) The rights of the author's children and grandchildren are

in all cases divided among them and exercised on a per stirpes

basis according to the number of such author's children

represented; the share of the children of a dead child in a

termination interest can be exercised only by the action of a

majority of them.

(D) In the event that the author's widow or widower,

children, and grandchildren are not living, the author's

executor, administrator, personal representative, or trustee

shall own the author's entire termination interest.

(3) Termination of the grant may be effected at any time during

a period of five years beginning at the end of thirty-five years

from the date of execution of the grant; or, if the grant covers

the right of publication of the work, the period begins at the

end of thirty-five years from the date of publication of the work

under the grant or at the end of forty years from the date of

execution of the grant, whichever term ends earlier.

(4) The termination shall be effected by serving an advance

notice in writing, signed by the number and proportion of owners

of termination interests required under clauses (1) and (2) of

this subsection, or by their duly authorized agents, upon the

grantee or the grantee's successor in title.

(A) The notice shall state the effective date of the

termination, which shall fall within the five-year period

specified by clause (3) of this subsection, and the notice

shall be served not less than two or more than ten years before

that date. A copy of the notice shall be recorded in the

Copyright Office before the effective date of termination, as a

condition to its taking effect.

(B) The notice shall comply, in form, content, and manner of

service, with requirements that the Register of Copyrights

shall prescribe by regulation.

(5) Termination of the grant may be effected notwithstanding

any agreement to the contrary, including an agreement to make a

will or to make any future grant.

(b) Effect of Termination. - Upon the effective date of

termination, all rights under this title that were covered by the

terminated grants revert to the author, authors, and other persons

owning termination interests under clauses (1) and (2) of

subsection (a), including those owners who did not join in signing

the notice of termination under clause (4) of subsection (a), but

with the following limitations:

(1) A derivative work prepared under authority of the grant

before its termination may continue to be utilized under the

terms of the grant after its termination, but this privilege does

not extend to the preparation after the termination of other

derivative works based upon the copyrighted work covered by the

terminated grant.

(2) The future rights that will revert upon termination of the

grant become vested on the date the notice of termination has

been served as provided by clause (4) of subsection (a). The

rights vest in the author, authors, and other persons named in,

and in the proportionate shares provided by, clauses (1) and (2)

of subsection (a).

(3) Subject to the provisions of clause (4) of this subsection,

a further grant, or agreement to make a further grant, of any

right covered by a terminated grant is valid only if it is signed

by the same number and proportion of the owners, in whom the

right has vested under clause (2) of this subsection, as are

required to terminate the grant under clauses (1) and (2) of

subsection (a). Such further grant or agreement is effective with

respect to all of the persons in whom the right it covers has

vested under clause (2) of this subsection, including those who

did not join in signing it. If any person dies after rights

under a terminated grant have vested in him or her, that person's

legal representatives, legatees, or heirs at law represent him or

her for purposes of this clause.

(4) A further grant, or agreement to make a further grant, of

any right covered by a terminated grant is valid only if it is

made after the effective date of the termination. As an

exception, however, an agreement for such a further grant may be

made between the persons provided by clause (3) of this

subsection and the original grantee or such grantee's successor

in title, after the notice of termination has been served as

provided by clause (4) of subsection (a).

(5) Termination of a grant under this section affects only

those rights covered by the grants that arise under this title,

and in no way affects rights arising under any other Federal,

State, or foreign laws.

(6) Unless and until termination is effected under this

section, the grant, if it does not provide otherwise, continues

in effect for the term of copyright provided by this title.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2569;

Pub. L. 105-298, title I, Sec. 103, Oct. 27, 1998, 112 Stat. 2829;

Pub. L. 107-273, div. C, title III, Sec. 13210(9), Nov. 2, 2002,

116 Stat. 1909.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The Problem in General. The provisions of section 203 are based

on the premise that the reversionary provisions of the present

section on copyright renewal (17 U.S.C. sec. 24 (section 24 of

former title 17)) should be eliminated, and that the proposed law

should substitute for them a provision safeguarding authors against

unremunerative transfers. A provision of this sort is needed

because of the unequal bargaining position of authors, resulting in

part from the impossibility of determining a work's value until it

has been exploited. Section 203 reflects a practical compromise

that will further the objectives of the copyright law while

recognizing the problems and legitimate needs of all interests

involved.

Scope of the Provision. Instead of being automatic, as is

theoretically the case under the present renewal provision, the

termination of a transfer or license under section 203 would

require the serving of an advance notice within specified time

limits and under specified conditions. However, although

affirmative action is needed to effect a termination, the right to

take this action cannot be waived in advance or contracted away.

Under section 203(a) the right of termination would apply only to

transfers and licenses executed after the effective date of the new

statute (Jan. 1, 1978), and would have no retroactive effect.

The right of termination would be confined to inter vivos

transfers or licenses executed by the author, and would not apply

to transfers by the author's successors in interest or to the

author's own bequests. The scope of the right would extend not

only to any ''transfer of copyright ownership,'' as defined in

section 101, but also to nonexclusive licenses. The right of

termination would not apply to ''works made for hire,'' which is

one of the principal reasons the definition of that term assumed

importance in the development of the bill.

Who Can Terminate a Grant. Two issues emerged from the disputes

over section 203 as to the persons empowered to terminate a grant:

(1) the specific classes of beneficiaries in the case of joint

works; and (2) whether anything less than unanimous consent of all

those entitled to terminate should be required to make a

termination effective. The bill to some extent reflects a

compromise on these points, including a recognition of the dangers

of one or more beneficiaries being induced to ''hold out'' and of

unknown children or grandchildren being discovered later. The

provision can be summarized as follows:

1. In the case of a work of joint authorship, where the grant

was signed by two or more of the authors, majority action by

those who signed the grant, or by their interests, would be

required to terminate it.

2. There are three different situations in which the shares of

joint authors, or of a dead author's widow or widower, children,

and grandchildren, must be divided under the statute: (1) The

right to effect a termination; (2) the ownership of the

terminated rights; and (3) the right to make further grants of

reverted rights. The respective shares of the authors, and of a

dead author's widow or widower, children, and grandchildren,

would be divided in exactly the same way in each of these

situations. The terms ''widow,'' ''widower,'' and ''children''

are defined in section 101 in an effort to avoid problems and

uncertainties that have arisen under the present renewal section.

3. The principle of per stirpes representation would also be

applied in exactly the same way in all three situations. Take

for example, a case where a dead author left a widow, two living

children, and three grandchildren by a third child who is dead.

The widow will own half of the reverted interests, the two

children will each own 16 2/3 percent, and the three

grandchildren will each own a share of roughly 5 1/2 percent.

But who can exercise the right of termination? Obviously, since

she owns 50 percent, the widow is an essential party, but suppose

neither of the two surviving children is willing to join her in

the termination; is it enough that she gets one of the children

of the dead child to join, or can the dead child's interest be

exercised only by the action of a majority of his children?

Consistent with the per stirpes principle, the interest of a dead

child can be exercised only as a unit by majority action of his

surviving children. Thus, even though the widow and one

grandchild would own 55 1/2 percent of the reverted copyright,

they would have to be joined by another child or grandchild in

order to effect a termination or a further transfer of reverted

rights. This principle also applies where, for example, two

joint authors executed a grant and one of them is dead; in order

to effect a termination, the living author must be joined by a

per stirpes majority of the dead author's beneficiaries. The

notice of termination may be signed by the specified owners of

termination interests or by ''their duly authorized agents,''

which would include the legally appointed guardians or committees

of persons incompetent to sign because of age or mental

disability.

When a Grant Can be Terminated. Section 203 draws a distinction

between the date when a termination becomes effective and the

earlier date when the advance notice of termination is served.

With respect to the ultimate effective date, section 203(a)(3)

provides, as a general rule, that a grant may be terminated during

the 5 years following the expiration of a period of 35 years from

the execution of the grant. As an exception to this basic 35-year

rule, the bill also provides that ''if the grant covers the right

of publication of the work, the period begins at the end of 35

years from the date of publication of the work under the grant or

at the end of 40 years from the date of execution of the grant,

whichever term ends earlier.'' This alternative method of

computation is intended to cover cases where years elapse between

the signing of a publication contract and the eventual publication

of the work.

The effective date of termination, which must be stated in the

advance notice, is required to fall within the 5 years following

the end of the applicable 35- or 40-year period, but the advance

notice itself must be served earlier. Under section 203(a)(4)(A),

the notice must be served ''not less than two or more than ten

years'' before the effective date stated in it.

As an example of how these time-limit requirements would operate

in practice, we suggest two typical contract situations:

Case 1: Contract for theatrical production signed on September 2,

1987. Termination of grant can be made to take effect between

September 2, 2022 (35 years from execution) and September 1, 2027

(end of 5 year termination period). Assuming that the author

decides to terminate on September 1, 2022 (the earliest possible

date) the advance notice must be filed between September 1, 2012,

and September 1, 2020.

Case 2: Contract for book publication executed on April 10, 1980;

book finally published on August 23, 1987. Since contract covers

the right of publication, the 5-year termination period would begin

on April 10, 2020 (40 years from execution) rather than April 10,

2015 (35 years from execution) or August 23, 2022 (35 years from

publication). Assuming that the author decides to make the

termination effective on January 1, 2024, the advance notice would

have to be served between January 1, 2014, and January 1, 2022.

Effect of Termination. Section 203(b) makes clear that, unless

effectively terminated within the applicable 5-year period, all

rights covered by an existing grant will continue unchanged, and

that rights under other Federal, State, or foreign laws are

unaffected. However, assuming that a copyright transfer or license

is terminated under section 203, who are bound by the termination

and how are they affected?

Under the bill, termination means that ownership of the rights

covered by the terminated grant reverts to everyone who owns

termination interests on the date the notice of termination was

served, whether they joined in signing the notice or not. In other

words, if a person could have signed the notice, that person is

bound by the action of the majority who did; the termination of the

grant will be effective as to that person, and a proportionate

share of the reverted rights automatically vests in that person.

Ownership is divided proportionately on the same per stirpes basis

as that provided for the right to effect termination under section

203(a) and, since the reverted rights vest on the date notice is

served, the heirs of a dead beneficiary would inherit his or her

share.

Under clause (3) of subsection (b), majority action is required

to make a further grant of reverted rights. A problem here, of

course, is that years may have passed between the time the reverted

rights vested and the time the new owners want to make a further

transfer; people may have died and children may have been born in

the interim. To deal with this problem, the bill looks back to the

date of vesting; out of the group in whom rights vested on that

date, it requires the further transfer or license to be signed by

''the same number and proportion of the owners'' (though not

necessarily the same individuals) as were then required to

terminate the grant under subsection (a). If some of those in whom

the rights originally vested have died, their ''legal

representatives, legatees, or heirs at law'' may represent them for

this purpose and, as in the case of the termination itself, any one

of the minority who does not join in the further grant is

nevertheless bound by it.

An important limitation on the rights of a copyright owner under

a terminated grant is specified in section 203(b)(1). This clause

provides that, notwithstanding a termination, a derivative work

prepared earlier may ''continue to be utilized'' under the

conditions of the terminated grant; the clause adds, however, that

this privilege is not broad enough to permit the preparation of

other derivative works. In other words, a film made from a play

could continue to be licensed for performance after the motion

picture contract had been terminated but any remake rights covered

by the contract would be cut off. For this purpose, a motion

picture would be considered as a ''derivative work'' with respect

to every ''preexisting work'' incorporated in it, whether the

preexisting work was created independently or was prepared

expressly for the motion picture.

Section 203 would not prevent the parties to a transfer or

license from voluntarily agreeing at any time to terminate an

existing grant and negotiating a new one, thereby causing another

35-year period to start running. However, the bill seeks to avoid

the situation that has arisen under the present renewal provision,

in which third parties have bought up contingent future interests

as a form of speculation. Section 203(b)(4) would make a further

grant of rights that revert under a terminated grant valid ''only

if it is made after the effective date of the termination.'' An

exception, in the nature of a right of ''first refusal,'' would

permit the original grantee or a successor of such grantee to

negotiate a new agreement with the persons effecting the

termination at any time after the notice of termination has been

served.

Nothing contained in this section or elsewhere in this

legislation is intended to extend the duration of any license,

transfer or assignment made for a period of less than thirty-five

years. If, for example, an agreement provides an earlier

termination date or lesser duration, or if it allows the author the

right of cancelling or terminating the agreement under certain

circumstances, the duration is governed by the agreement.

Likewise, nothing in this section or legislation is intended to

change the existing state of the law of contracts concerning the

circumstances in which an author may cancel or terminate a license,

transfer, or assignment.

Section 203(b)(6) provides that, unless and until termination is

effected under this section, the grant, ''if it does not provide

otherwise,'' continues for the term of copyright. This section

means that, if the agreement does not contain provisions specifying

its term or duration, and the author has not terminated the

agreement under this section, the agreement continues for the term

of the copyright, subject to any right of termination under

circumstances which may be specified therein. If, however, an

agreement does contain provisions governing its duration - for

example, a term of fifty years - and the author has not exercised

his or her right of termination under the statute, the agreement

will continue according to its terms - in this example, for only

fifty years. The quoted language is not to be construed as

requiring agreements to reserve the right of termination.

AMENDMENTS

2002 - Subsec. (a)(2)(A) to (C). Pub. L. 107-273, in subpars. (A)

to (C), substituted ''The'' for ''the'' and, in subpars. (A) and

(B), substituted period for semicolon at end.

1998 - Subsec. (a)(2). Pub. L. 105-298, Sec. 103(1), struck out

''by his widow or her widower and his or her children or

grandchildren'' after ''exercised,'' in introductory provisions.

Subsec. (a)(2)(D). Pub. L. 105-298, Sec. 103(2), added subpar.

(D).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 36 section 2114.

-CITE-

17 USC Sec. 204 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER

-HEAD-

Sec. 204. Execution of transfers of copyright ownership

-STATUTE-

(a) A transfer of copyright ownership, other than by operation of

law, is not valid unless an instrument of conveyance, or a note or

memorandum of the transfer, is in writing and signed by the owner

of the rights conveyed or such owner's duly authorized agent.

(b) A certificate of acknowledgement is not required for the

validity of a transfer, but is prima facie evidence of the

execution of the transfer if -

(1) in the case of a transfer executed in the United States,

the certificate is issued by a person authorized to administer

oaths within the United States; or

(2) in the case of a transfer executed in a foreign country,

the certificate is issued by a diplomatic or consular officer of

the United States, or by a person authorized to administer oaths

whose authority is proved by a certificate of such an officer.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2570.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Section 204 is a somewhat broadened and liberalized counterpart

of sections 28 and 29 of the present statute (sections 28 and 29 of

former title 17). Under subsection (a), a transfer of copyright

ownership (other than one brought about by operation of law) is

valid only if there exists an instrument of conveyance, or

alternatively a ''note or memorandum of the transfer,'' which is in

writing and signed by the copyright owner ''or such owner's duly

authorized agent.'' Subsection (b) makes clear that a notarial or

consular acknowledgment is not essential to the validity of any

transfer, whether executed in the United States or abroad.

However, the subsection would liberalize the conditions under which

certificates of acknowledgment of documents executed abroad are to

be accorded prima facie weight, and would give the same weight to

domestic acknowledgments under appropriate circumstances.

-CITE-

17 USC Sec. 205 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER

-HEAD-

Sec. 205. Recordation of transfers and other documents

-STATUTE-

(a) Conditions for Recordation. - Any transfer of copyright

ownership or other document pertaining to a copyright may be

recorded in the Copyright Office if the document filed for

recordation bears the actual signature of the person who executed

it, or if it is accompanied by a sworn or official certification

that it is a true copy of the original, signed document.

(b) Certificate of Recordation. - The Register of Copyrights

shall, upon receipt of a document as provided by subsection (a) and

of the fee provided by section 708, record the document and return

it with a certificate of recordation.

(c) Recordation as Constructive Notice. - Recordation of a

document in the Copyright Office gives all persons constructive

notice of the facts stated in the recorded document, but only if -

(1) the document, or material attached to it, specifically

identifies the work to which it pertains so that, after the

document is indexed by the Register of Copyrights, it would be

revealed by a reasonable search under the title or registration

number of the work; and

(2) registration has been made for the work.

(d) Priority Between Conflicting Transfers. - As between two

conflicting transfers, the one executed first prevails if it is

recorded, in the manner required to give constructive notice under

subsection (c), within one month after its execution in the United

States or within two months after its execution outside the United

States, or at any time before recordation in such manner of the

later transfer. Otherwise the later transfer prevails if recorded

first in such manner, and if taken in good faith, for valuable

consideration or on the basis of a binding promise to pay

royalties, and without notice of the earlier transfer.

(e) Priority Between Conflicting Transfer of Ownership and

Nonexclusive License. - A nonexclusive license, whether recorded or

not, prevails over a conflicting transfer of copyright ownership if

the license is evidenced by a written instrument signed by the

owner of the rights licensed or such owner's duly authorized agent,

and if -

(1) the license was taken before execution of the transfer; or

(2) the license was taken in good faith before recordation of

the transfer and without notice of it.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2571;

Pub. L. 100-568, Sec. 5, Oct. 31, 1988, 102 Stat. 2857.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The recording and priority provisions of section 205 are intended

to clear up a number of uncertainties arising from sections 30 and

31 of the present law (sections 30 and 31 of former title 17) and

to make them more effective and practical in operation. Any

''document pertaining to a copyright'' may be recorded under

subsection (a) if it ''bears that actual signature of the person

who executed it,'' or if it is appropriately certified as a true

copy. However, subsection (c) makes clear that the recorded

document will give constructive notice of its contents only if two

conditions are met: (1) the document or attached material

specifically identifies the work to which it pertains so that a

reasonable search under the title or registration number would

reveal it, and (2) registration has been made for the work.

Moreover, even though the Register of Copyrights may be compelled

to accept for recordation documents that on their face appear

self-serving or colorable, the Register should take care that their

nature is not concealed from the public in the Copyright Office's

indexing and search reports.

The provisions of subsection (d), requiring recordation of

transfers as a prerequisite to the institution of an infringement

suit, represent a desirable change in the law. The one- and

three-month grace periods provided in subsection (e) are a

reasonable compromise between those who want a longer hiatus and

those who argue that any grace period makes it impossible for a

bona fide transferee to rely on the record at any particular time.

Under subsection (f) of section 205, a nonexclusive license in

writing and signed, whether recorded or not, would be valid against

a later transfer, and would also prevail as against a prior

unrecorded transfer if taken in good faith and without notice.

Objections were raised by motion picture producers, particularly to

the provision allowing unrecorded nonexclusive licenses to prevail

over subsequent transfers, on the ground that a nonexclusive

license can have drastic effects on the value of a copyright. On

the other hand, the impracticalities and burdens that would

accompany any requirement of recordation of nonexclusive licenses

outweigh the limited advantages of a statutory recordation system

for them.

AMENDMENTS

1988 - Subsecs. (d) to (f). Pub. L. 100-568 redesignated subsecs.

(e) and (f) as (d) and (e), respectively, and struck out former

subsec. (d), which read as follows: ''No person claiming by virtue

of a transfer to be the owner of copyright or of any exclusive

right under a copyright is entitled to institute an infringement

action under this title until the instrument of transfer under

which such person claims has been recorded in the Copyright Office,

but suit may be instituted after such recordation on a cause of

action that arose before recordation.''

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

RECORDATION OF SHAREWARE

Pub. L. 101-650, title VIII, Sec. 805, Dec. 1, 1990, 104 Stat.

5136, provided that:

''(a) In General. - The Register of Copyrights is authorized,

upon receipt of any document designated as pertaining to computer

shareware and the fee prescribed by section 708 of title 17, United

States Code, to record the document and return it with a

certificate of recordation.

''(b) Maintenance of Records; Publication of Information. - The

Register of Copyrights is authorized to maintain current, separate

records relating to the recordation of documents under subsection

(a), and to compile and publish at periodic intervals information

relating to such recordations. Such publications shall be offered

for sale to the public at prices based on the cost of reproduction

and distribution.

''(c) Deposit of Copies in Library of Congress. - In the case of

public domain computer software, at the election of the person

recording a document under subsection (a), 2 complete copies of the

best edition (as defined in section 101 of title 17, United States

Code) of the computer software as embodied in machine-readable form

may be deposited for the benefit of the Machine-Readable

Collections Reading Room of the Library of Congress.

''(d) Regulations. - The Register of Copyrights is authorized to

establish regulations not inconsistent with law for the

administration of the functions of the Register under this

section. All regulations established by the Register are subject

to the approval of the Librarian of Congress.''

REGISTRATION OF CLAIMS TO COPYRIGHTS AND RECORDATION OF ASSIGNMENTS

OF COPYRIGHTS AND OTHER INSTRUMENTS UNDER PREDECESSOR PROVISIONS

Recordation of assignments of copyrights or other instruments

received in the Copyright Office before Jan. 1, 1978, to be made in

accordance with this title as it existed on Dec. 31, 1977, see

section 109 of Pub. L. 94-553, set out as a note under section 410

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 708 of this title;

title 28 section 4001.

-CITE-